The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1887-12-15
THE SPECIAL TAX CLAUSE.
An important Decision Rendered by
Judge Whitehouse.
The Establishing of Prima Facle Evil
dence by the Legislature
Held to Conflict with Provisions of
the Constitution.
Especial to the Press.l


AUGUSTA, Dec. 14-The last Legislature
passed law making the payment of retail
liquor dealers special United States tax
prima facie evidence to be employed in trials
of .rumsellers. The amendment covering
this point was as follows:
The payment of the United States special tax as
liquor seller, or notice of any kind in any place
of resort, indicating that intoxicating liquors are
there sold, kept or given away unlawfully, shall
be held to be prinaG focie evidence that the per-
son or persons paying said tax and the party or
parties displaying said notices are common sellers
of intoxicating liquors. and the premises SO kept
| by them common nuisances.
The passage of the law occasioned much
comment at the time, and was regarded as
one of the strongest and most effective por-
tions of the last Legislatures enactments.
As the law was passed, it was intended that
the payment of a special tax should be con-
elusive evidence to convict, the wording Of
the amendment being to that effect. As a
result. this class of evidence at once became
prominent in the courts, notably in Kenne-
bee county, where Murphy made martyr
of himself and went to jail.
But it now appears that this law, on which
so much reliance was placed by the friends
of temperance, loses its teeth by reason Of
the decision of the courts. In case before
the Superior Court of Kennebee county this
week, where the payment of special tax
was introduced by the County Attorney as
evidence, Judge Whitehouse, in charging
the jury, rendered decision declaring the
law unconstitutional and giving the respond
ent the privilege of the jury's judgment.
Judge Whitehouse charged that it was not
competent for the Legislature to direct a
jury to render verdict of guilty on evidence
of the payment of a special tax; that the
presumption of innocence was among the
rules for the protection of private rights
which had extended from time immemorial
and by the phrase, ''law Of the land" been
guaranteed to the accused in the constitution
of the State; that the right to the Judgment
of his peers" was also secured to every per-
son by the same provision of the organic
law; that if the act in question should be so
construed as to require the jury to convict
ON proof of the payment of special tax
alone, it would practically deprive the ac-
cused of the benefit of this presumption and
of the right to the Judgment of his peers,
substituting therefor the artificial presump-
tion created by the Legislature; and with
this construction it would clearly be in vio-
lation of the constitutional rights; but the
jury might consider the payment of special
tax fact of great significance and if ex-
planned deem it sufficient in connection with
the description of the premises, to afford full
satisfaction of guilt; that while he could not
say to then. as a matter of law that they were
required to convict, they would have a right
to inquire what motive person could have
to pay to the government the sum of $25 for
special stamp as a retail liquor dealer, un-
less he was engaged in that business. 1t
was all matter of fact for them.
1t is learned that case which went up to
the Law Court from the Cumberland County
Superior Court sustaining the primG facie
law has been considered by the judges, and
your correspondent is informed that it is
probable an adverse decision will be rem
dered and the law pronounced unconstitu-
tional.
The payment of special tax will then
have precisely the same weight as evidence
that it did before the passage of the prime
facie law, giving the respondent an oppor-
tunity to offer evidence explanatory of why
he paid the special tax.